Yes, in a case of first impression, the Eleventh Circuit affirmed that a pre-eligibility request for post-eligibility leave may serve as a viable basis for interference and retaliation claims under the Family and Medical Leave Act (FMLA). Pereda v. Brookdale Senior Living Cmtys., Inc., 2012 U.S. App. LEXIS 492 (11th Cir. Fla. Jan. 10, 2012).

Plaintiff Kathryn Pereda (Pereda) began working at a senior living facility in Pampano Beach, Florida in October 2008. She was terminated 11 months later, in September of 2009. Seven months into her employment, Peredanotified her employer that she was pregnant and would require FMLA leave after the birth of her child in November 2009. Pereda alleges that prior to notifying her employer of her pregnancy, she was considered a top employee.  However, after she requested leave, Peredaalleges that she was harassed and disciplined for taking prenatal visits, and that her employer “denigrating her job performance” and placed her on a performance improvement plan with unattainable goals.

Peredabrought suit, claiming bothinterference and retaliation under the FMLA. The trial court granted the employer’s motion to dismiss, stating that the employer could not have interfered with Pereda’s FMLA rights because she was not entitled to FMLA leave at the time she requested it. Similarly, the court held that because Pereda was not eligible for FMLA leave, she could not have engaged in protected activity and that her retaliation claim necessarily failed.

An employee is eligible for protection under the FMLA if: (1) they have worked for the employer at least 12 months, and for at least 1,250 hours during the previous 12-month period, and (2) have experienced a triggering event, such as the birth of a child.  Other courts have held that the determination of whether an employee has worked for the employer for at least 1,250 hours in the past 12 months, and has been employed by the employer for a total of at least 12 months must be made as of the date the FMLA leave is to start. 29 C.F.R. 825.11(d).

Not surprisingly, the Eleventh Circuit reversed the trial court, concluding that had Pereda not been terminated, she would have been eligible and entitled to begin FMLA-leave as of her due date on November 30, 2009, at which point she would have been employed for 14 months, well within the statutory requirement. Under these facts, the Court held that allowing the trial court’s ruling to stand would have created a loophole “whereby an employer has total freedom to terminate an employee before she can ever become eligible” and that “[s]uch a situation is contrary to the basic concept of the FMLA.”

On the interference claim, the Court held that the FMLA’s requirement of providing notice in advance of future leave protects employees before the occurrence of a triggering event, like having a baby. To hold otherwise, the Eleventh Circuit noted, would create a “trap for newer employees” and extend to employers a “significant exemption from liability.” On Pereda’s retaliation claim, the Eleventh Circuit held that since the FMLA protects a pre-eligibility request for post-eligibility maternity leave, Peredaalso could state a cause of action for FMLA retaliation “because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave.”

This case illustrates two important takeaways for employers: First, employers should be aware that an employee who announces a future need for FMLA leave prior to becoming eligible is likely protected under the FMLA, if they will become eligible by the time the leave is scheduled to start. Second, employers must pay careful attention to the manner in which they treat employees after leave has been requested in order to avoid claims of harassment, improper discipline, retaliation and interference.